Agenda for 3rd Class
• Misc.
– Name plates
– Lunch on Friday
• National Society
• In re Blanche Flower
• Introduction to Common Law
1
Assignment for Next Class
• Read Materials #127 (pp. 581-590)
– Winterbottom v Wright, Thomas v Winchester, Loop v
Litchfield
– NOT Devlin v Smith
• Questions to think about & Writing Assignment for
Group 1
– Questions following the 3 cases you read (pp. 583-84 58788, 590
2
Review of Last Class I
• Weber
• Intentionalism, like textualism, doesn’t always determine a unique
outcome
• Legislators often don’t foresee the legal issues, like voluntary affirmative
action, that will come up, so neither text nor legislative history is likely to
squarely address those issues
• Purposivism may also lead to different results, because it is usually
possible to think of different purposes
• Dworkin. When strictly legal tool run out, then judge should choose
solution that is best as a matter of political morality AND consistent with
text, legislative history, and plausible purpose
• Query. Do strictly legal tool ever really run out? Does one side
always have arguments that are at least slightly better?
• Query. Why choose based on political morality rather than
economics or some other basis?
• Historical note. Union may not have been as racist as portrayed
3
Questions on p. 45ff. (cont.)
• 5. The Garrett excerpt on statutory interpretation (reading #7) refers to a
theory of statutory interpretation which states that the relevant intentions are
those of “pivotal lawmakers whose support is necessary for enactment.”
Consider the following drastic simplification of the debate over Title VII.
Congress was composed of three groups. 40% were racists who opposed
equal treatment for African Americans. They would vote against any civil
rights bill. 40% were ardent advocates of civil rights, who favored not only
equal treatment, but affirmative action, quotas, and other means of swiftly
integrating African Americans into the mainstream of American life. Although
ardent advocates of civil rights would favor a bill which allowed affirmative
action, they would support a bill which required only equal treatment. 20%
were moderates who favored color-blind decisionmaking and equality of
opportunity, but who opposed (and would vote against any bill that permitted
or required) affirmative action or quotas. In this situation, the pivotal
lawmakers are the moderates. So, according to the theory that statutes
should be interpreted in accordance with the intentions of the pivotal
lawmakers, Title VII should have been interpreted to forbid affirmative in
United Steelworkers v, Weber. Does it make sense to interpret Title VII this
4
way, even though two-thirds of those who supported the statute would have
favored a contrary outcome?
Questions on p. 45ff. (cont.)
• 6. Title VII also forbids discrimination on the basis of sex. This
provision was inserted by opponents of racial equality who
thought that gender equality would be so unpopular among
legislators that even those who favored racial equality would
vote against the bill. There was no debate on banning gender
discrimination, and Title VII eventually passed. How would an
intentionalist interepret Title VII’s provisions relating to gender
discrimination? Would an intentionalist refuse to enforce Title
VII’s ban on gender discrimination even in blatant cases, such
as a case where an employer announced it would not hire any
women?
• 7. Do you agree with Dworkin’s analysis?
5
National Society of Prof. Engineers
• Engineering Society Code of Ethics forbade competitive bidding
• Sued by US Government for violation of antitrust laws
• Sherman Antitrust Act states “Every contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be illegal. . . .
• Sherman Act interpreted according to Rule of Reason, which focuses on
“challenged restraint’s impact on competitive conditions.”
– Restraint legal if serves competition
• Covenant not to compete with sale of bakery
– Congress has made “policy decision” that “favoring competition is in the
public interest”
• Ct. for plaintiff
– Ban on competitive bidding has detrimental impact on competitive
conditions
• Not outweighed by concerns for safety or quality
• Good example of purposivist interpretation
– Vague statute interpreted to foster competition, efficiency
– References to intent are weak and historically inaccurate
6
National Society of Prof. Engineers
• 1. If the text of § 1 of the Sherman Act were interpreted
literally, who would win this case? Be sure to consider textual
arguments for both sides. See the first footnote in Section II of
the opinion for the full text of the Sherman Act.
• 3. Some historians argue that the lawmakers who enacted the
Sherman Act were more interested in protecting small
producers than in protecting consumers. That is, they might
disfavor unfettered competition that led to a small number of
large firms to dominate the market, even if such competition
would lead to lower prices and higher quality for consumers.
How might the outcome of this case change if the Court were to
adopt that interpretation of legislative intent? Note that, in
many contexts, unrestrained price-competition leads to the
dominance of a few large firms.
7
National Society of Prof. Engineers
• 4. Suppose that the Court is correct that Congress intended
courts to “draw on the common-law tradition.” Does that mean
that the common law is frozen in the state it was in 1890, when
the Sherman Act was passed? For example, suppose that
courts in 1890 had held that manufacturers could not fix the
prices at which retailers sold their products (a practice called
resale price maintenance). Suppose, further, that advances in
economic theory suggested that resale price maintenance
benefited consumers by giving retailers incentives to provide
better service. Would it be permissible for a court to allow
resale price maintenance?
8
In re Blanche Flower
9
Common Law Interpretation I
• Common law means many things
– Body of law established by judicial decisions
• Not based on statute or Constitution
• Most of US contract, tort, and property law
• “Judge made law”
– Opposite of civil law
• Common law is legal system derived from England and used in US,
Canada, Australia and other former English colonies
• Civil law is legal system derived from France, Germany, or other
continental Europeans systems in used in their colonies as well as in
Japan, China, and other countries which voluntarily adopted such
legal systems
– Opposite of equity
– Any judicial interpretations, even if of statute or the US Constitution
• “common law” of Sherman Antitrust law
• In this course, especially in this section, focus is on first meaning of common
law
10
Common Law Interpretation II
• Common law built up case by case by judges trying to do what seems both
consistent with precedent and just
– Prior cases inevitably leave undecided questions, which judges must try
to resolve
– Language of prior decisions not as important as language of statutes
• No one is a textualist when it comes to common law interpretation
– Policy, what seems just, is more important
• Although judges are not always explicit about policy or vision of
justice which justifies their decisions
11
Common Law Interpretation III
• Holdings
– Rule of law is not always stated in case itself
– Even if rule of law is stated in case itself
• Later judges not bound by that statement of holding
– Later judges are free to interpret case in different way
• Free to construct different holding, as long as consistent with facts
and law
– Example
• Case 1. Facts: Loaded gun traded for drugs
– Decision . Violation of 924(c)(1)
– Rule stated in case: trading gun for drugs violates 924(c)(1),
because guns increase the danger of violence in drug
transactions
• Case 2. Facts. Unloaded gun traded for drugs
– Could might say holding of Case 1 was “trading loaded gun for
drugs violated 924(c)(1),” because trading an unloaded gun does
not make the drug transaction any more dangerous
– Holding is rule that is consistent with facts and outcome, and for which
can make plausible policy argument.
12